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Whistleblowing: “In the public interest” - a tight squeeze?

In Morgan v Royal Mencap Society (UKEAT/0272/15), the Employment Appeal Tribunal (EAT) considered whether a complaint about an employee's cramped working conditions could meet the public interest requirement of a protected disclosure.

Background

From June 2013, disclosures have had to satisfy the “public interest” test in order to be protected. This follows the amendment to the Employment Rights Act 1996 that sought to reverse the effect of Parkins v Sodexho [2002] IRLR 109, in which the EAT had held that a breach of a legal obligation owed by an employer to an employee under his or her own contract of employment might constitute a protected disclosure.

Facts

Ms Morgan was employed by the Royal Mencap Society (Mencap) from 11 September 2011 until 4 July 2014, when her employment came to an end. She brought a claim for constructive unfair dismissal, alleging that she had resigned following a repudiatory breach of her employment contract by Mencap, and also claimed that her dismissal was automatically unfair on the basis that she had made protected disclosures in respect of health and safety matters. She also alleged that she had suffered detriments on the same grounds.

The alleged protected disclosures were in respect of health and safety concerns about cramped working conditions. On a number of occasions in June 2014, Ms Morgan had raised concerns that her working area was cramped and was adversely affecting her injured knee. Her concerns were raised verbally, by email and by completing a document entitled “Safeguarding Reporting Form”.

Mencap applied for Ms Morgan’s claims to be struck out on the basis that the complaints that she had raised were not “in the public interest” and were therefore not protected disclosures. Ms Morgan argued that, given Mencap’s charitable status, the public would have been interested in the working conditions of its employees and any deficiencies in health and safety. She also argued that the issues she raised presented a threat to the health and safety of others.

Employment tribunal decision

Ms Morgan’s claims were struck out at a preliminary hearing at which limited evidence was heard and none was heard on Ms Morgan’s side.

The employment judge acknowledged that satisfying the “public interest” test for a disclosure to be protected did not require there to be an actual public interest in the disclosure. However, the worker did have to reasonably believe that the disclosure was made in the public interest. In this case, he held that Ms Morgan’s disclosures, although of great importance to her, were not in the public interest and that she could not have reasonably believed that they were. Accordingly, her claims were struck out on the basis that they had no reasonable prospect of success. Ms Morgan appealed.

EAT decision

The EAT confirmed that the threshold for striking out a claim as having no reasonable prospect of success is high and that it would not usually be appropriate for a claim to be struck out without hearing evidence. This is particularly true for discrimination or whistleblowing cases, where the questions to be determined are often fact-sensitive and where an investigation is required as to why an employer took a specific action or decision.

The EAT held that a claim can be struck out without hearing evidence where, taking the central facts at their highest in favour of the claimant, the claim cannot proceed as pleaded. However, where there is a dispute of fact, resolution of that conflict is likely to be required before the power to strike out a claim can be exercised without a hearing.

The EAT acknowledged that whether or not others could be affected by the same or similar working conditions, and whether Ms Morgan did have a reasonable belief that such matters were in the public interest, might not be established ultimately. However, these were questions of fact and degree that would be affected by the evidence.

The EAT held that the employment judge had not taken all aspects of Ms Morgan’s case at its highest. He had omitted entirely Ms Morgan’s case. The EAT considered that it was reasonably arguable that an employee might consider health and safety complaints – even where the employee is the principal person affected – to be made in the wider interests of employees generally and therefore meet the “public interest” test following the case of Chesterton Global Ltd v Nurmohamed UK (UKEAT/0335/14).

The EAT therefore allowed the appeal and remitted the claim to the ET for a substantive hearing, to be heard by a different employment judge.

Comment

Although this case primarily dealt with issues of ET procedure and the threshold for strike out, and while each case is to be determined on its facts and merits, it does confirm the line of authority in cases such as Chesterton and also Underwood v Wincanton plc (UKEAT/0163/15) that a worker’s complaint about their own contract or working conditions can still potentially satisfy the public interest test.

The Court of Appeal is due to hear the appeal in Chesterton in October 2016, which may provide some clarity on how far case law has superseded the legislative intention in amending the Employment Rights Act 1996.

In the meantime, employers should not automatically assume that a complaint that appears to relate only to an individual worker will not be a protected disclosure. Where a worker has previously made a complaint that could otherwise meet the definition of a protected disclosure, employers may wish to take further advice when proposing to terminate employment or do anything that might be construed as a detriment.

Compare jurisdictions: Employment: USA

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